The Order In The Court

Slate's Dahlia Lithwick makes the argument that the conservatives on the Supreme Court may very well be willing and able to strike down the entire health care reform law...but that they won't do it and for an obvious reason:

So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.

But here's the thing:  Lithwick is betting they won't do it, and the reason is if they do, the court loses the Washington Sensible Centrist tag for good.  And John Roberts expects to be Chief Justice for a long, long time.

On the other hand, I’d suggest that there is an equally powerful countervailing force at work on the justices. Because, as it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signaling that they are moderate, temperate, and minimalist in their duties. From Chief Justice Robert’s description of himself as just an “umpire” and his speeches about humility and the need for unanimity, to Stephen Breyer’s latest book Making Our Democracy Work—a meditation on all the ways the courts depend on public confidence. Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay). That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. (Greenhouse points to a Bloomberg News national poll showing that 75 percent of Americans expect the decision to be influenced by the justices’ personal politics.) To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court. Justice Clarence Thomas doesn’t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.

And with all the cases heading to SCOTUS this year, losing that oh so valuable Sensible Centrist designation and becoming a dreaded Partisan Institution is not something that's going to make Roberts really popular at parties.  His fee-fees would be hurt.  He won't risk it.

At least, not for this.  Now striking down Roe...